Foreign Investment Reform (Protecting Australia's National Security) Act 2020 (114 of 2020)
Schedule 1 Main amendments
Part 1 Amendment of the Foreign Acquisitions and Takeovers Act 1975
Foreign Acquisitions and Takeovers Act 1975
129 Section 77
Repeal the section, substitute:
77 Time limit on making orders and decisions
Time limit on making orders or decisions
(1) If a decision period starts in relation to an action (see subsection (6)), the Treasurer must not (subject to subsections (2) to (5)) make an order or decision under Division 2 relating to the action after the end of the decision period.
Note 1: For when the Treasurer may vary or revoke an order or no objection notification, see sections 74, 76, 76A and 79G.
Note 2: For further powers the Treasurer has after the expiry of the time limit in this section, see Division 3 of Part 3 (about last resort powers).
Longer time limit where interim order is made
(2) However, if:
(a) the Treasurer makes, or purports to make, an interim order in relation to the action on or before the end of the decision period; and
(b) the interim order is registered in accordance with section 79M;
the Treasurer must not make an order under section 67 or 69 or a decision under section 74 or 75 relating to the action after the end of the period specified in the interim order.
No time limit if action taken during period
(3) Subsections (1) and (2) do not apply if:
(a) the decision period started because the Treasurer received a notice from a person stating that the action was proposed to be taken; and
(b) the person took the action before the end of:
(i) for a case to which subsection (1) applies - the decision period; or
(ii) for a case to which subsection (2) applies - the period specified in the interim order.
No time limit if order made during period
(4) Subsections (1) and (2) do not apply if:
(a) the Treasurer madean order (other than an interim order) or decision under Division 2 relating to the action on or before the end of:
(i) for a case to which subsection (1) applies - the decision period; or
(ii) for a case to which subsection (2) applies - the period specified in the interim order; and
(b) the Treasurer also registers the order in accordance with section 79M, or gives a notification in accordance with subsection 74(3) or 75(3).
Later decision periods
(5) Subsections (1) and (2) do not prevent the Treasurer from making an order or decision in relation to an action at a time after the end of a period if the time is in:
(a) another decision period that has started in relation to the action under subsection (6); or
(b) a period specified in an interim order made, or purported to be made, during another decision period that has started in relation to the action under subsection (6).
Note: Under the table in subsection (6), there may be more than one decision period for an action. For example, a decision period might start in relation to an action under item 1 of the table and then later another decision period might start under item 5 of the table.
When a decision period starts
(6) A decision period starts in relation to an action referred to in column 1 of an item in the following table if the event referred to in column 2 of that table item occurs. To avoid doubt, there may be more than one decision period for an action.
|
When a decision period starts |
||
|---|---|---|
|
Item |
Column 1
Action |
Column 2
Event |
|
1 |
Any of the following: (a) a significant action; (b) a notifiable national security action; (c) a reviewable national security action |
The Treasurer receives a notice from a person stating that the action is proposed to be taken |
|
2 |
An action to which an exemption certificate relates |
The action becomes a core Part 3 action as a result of the operation of subsection 62B(2) (which is about the effect of revocation of an exemption certificate) |
|
3 |
Any of the following: (a) a significant action that is not a notifiable action or notifiable national security action; (b) a reviewable national security action |
The Treasurer gives a person a notice in relation to the action under subsection 66A(4) (which is about national security review of actions) |
|
4 |
An action in relation to which the Treasurer made a decision under section 74 or 75 (which is about no objection notifications) |
The Treasurer notifies a person under subsection 76A(4) that the Treasurer has revoked a no objection notification given to the person in relation to the action |
|
5 |
Any of the following: (a) a significant action; (b) a notifiable national security action; (c) a reviewable national security action |
An order or decision the Treasurer purported to make under Division 2 in relation to the action is set aside by a court |
Note 1: If a fee is payable by a person under section 113, the notice is taken not to have been given until the fee has been paid or waived (see section 114).
Note 2: For withdrawal of notices, see section 136.
Notice given under section 133
(7) If a notice is given to a person under section 133 requiring a person to give information or produce a document, a decision period, or a period specified in an interim order, does not include any day in the period:
(a) beginning on the day the notice is given; and
(b) ending on the day the person gives the information or produces the document in accordance with the notice.
Meaning of decision period
(8) A decision period is:
(a) the period of 30 days after the day the event referred to in column 2 of the applicable item of the table in subsection (6) occurs; or
(b) if, before the end of a decision period (including a decision period as extended under this paragraph), the person specified in subsection (9) requests in writing the Treasurer to extend the period - the period as so extended; or
(c) if, before the end of a decision period (including a decision period as extended under this paragraph or paragraph (b)), the Treasurer extends the period under section 77A - the period as so extended.
Specified person for extensions of the decision period
(9) The person is:
(a) in a case to which item 1, 3 or 4 of the table in subsection (6) applies - the person mentioned in column 2 of that table item; or
(b) in a case to which item 2 of the table in subsection (6) applies in relation to a variation or revocation under section 62 - the person to whom the exemption certificate was given; or
(c) in a case to which item 2 of the table in subsection (6) applies in relation to a variation or revocation under section 62A - the person to whom the notice under section 62A was given; or
(d) in a case to which item 5 of the table in subsection (6) applies - the person who took, or proposed to take, the action.
77A Treasurer may extend decision period by up to 90 days
(1) Before the end of a decision period, the Treasurer may, by notice in writing given to the person specified in subsection 77(9), extend (or further extend) the period. The Treasurer may do so more than once.
(2) The total number of days by which the Treasurer may extend a decision period by notices given under this section must not exceed 90 days.
(3) The notice:
(a) must include the reasons for the decision; and
(b) in a case to which item 1 of the table in subsection 77(6) applies - may be given to the person at an address (including an electronic address) specified in the notice relating to the action as the address for service of notices relating to the action.
(4) The Treasurer is not required to observe any requirements of the natural justice hearing rule in making a decision under subsection (1).